Gujarat High Court
British Super Alloys(P) Ltd Thro ... vs Bank Of Baroda & on 4 April, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
BRITISH SUPER ALLOYS(P) LTD THRO DIRECTOR....Petitioner(s)V/SBANK OF BARODA C/SCA/1160/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1160 of 2013 ================================================================ BRITISH SUPER ALLOYS(P) LTD THRO DIRECTOR....Petitioner(s) Versus BANK OF BARODA & 1....Respondent(s) ================================================================ Appearance: MR ASHOK YAGNIK, ADVOCATE for the Petitioner(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 04/04/2013 ORAL ORDER
1. Heard Mr. Yagnik, learned advocate for the petitioner.
2. In present petition the petitioner has prayed, inter alia, that:-
12.
(a).......
(b) This Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, holding and declaring that the 0.50% prepayment charges recovered by the respondent Bank from the petitioner company is totally illegal, unjust, improper, unreasonable, arbitrary, whimsical, capricious, high-handed and direct the respondent Bank to recalculate this charges based on repayment programmed and return the amount illegally recovered by the respondent Bank with interest, in the interest of justice.
(c)......
(d)......
So far as the factual backdrop is concerned, it emerges from the details mentioned in the petition that the petitioner had availed term loan from the respondent Bank.
3.1 The terms and conditions were agreed by and between the parties at the time when the loan facility was availed.
3.2 The petitioner voluntarily agreed to and accepted the terms and condition of the term loan, when he availed the term loan granted by the bank and he accepted the terms and conditions.
3.3 Now, after having agreed and accepted the terms and conditions and after having availed loan facility (with specified and agreed / accepted terms and conditions), when the question of repayment of the term loan has arisen, the petitioner has taken out present petition and is disputing the bank's right to act as per and to enforce the terms and condition of the said term loan facility which the petitioner accepted and agreed to abide by while availing the term loan.
3.4 The arrangement between the petitioner and respondent bank which is the subject matter of present petition, is matter of contract between the petitioner and the respondent bank.
3.5 The contract between the petitioner and the respondent bank is purely of commercial nature and the transaction between the petitioner and respondent bank is purely commercial transaction. Any dispute arising from and on account of enforcement of an agreement of commercial nature and / or agreement related to commercial transaction cannot be entertained in exercise of prerogative and discretionary writ jurisdiction and such dispute can be considered and decided in ordinary civil proceedings / remedy.
3.6 When the petitioner availed loan facility, the terms and conditions subject to which, the bank was ready to grant loan facility were clearly informed to the petitioner and the petitioner accepted the said terms and conditions and executed loan agreement i.e. voluntarily signed the agreement whereby the petitioner accepted all terms and conditions which include, condition of applicable charges in the event of default or delay in repayment and also as regards the mode of payment, processing charges, applicable, rate of interest etc. In present petition, as the details mentioned in the petition and the relief prayed for by the petitioner discloses, the petitioner also challenges the mode of calculation and quantification of the amount due from the petitioner, as determined by the respondent bank.
3.8 Thus, on overall consideration of the petition, it emerges that the petitioner has preferred petition in connection with subject which is purely in nature of and in the realm of commercial contract.
3.9 Besides this, the terms and conditions of the contract were voluntarily agreed upon and accepted by the petitioner at the time of availing loan facility.
3.10 Now after availing loan facility and after having committed default and / or delay in repayment and when question of repayment arose, it is not open to the petitioner to dispute the said terms and conditions.
Furthermore, as mentioned above the petition includes dispute regarding mode of calculation and quantification of the due amount.
3.12 The said issue and grievance of the petitioner involves and raises disputed questions of facts which can be effectively examined and decided by learned trial Court in ordinary civil remedy.
3.13 All these aspects cannot be considered in writ petition under Article 226 of the Constitution of India.
3.14 The remedy under Article 226 of the Constitution of India is discretionary and prerogative remedy and in the facts of the case, the Court is not inclined to exercise discretionary jurisdiction because the dispute is related to a contract of commercial nature and it arises on account of enforcement of mutually agreed term and conditions of contract of commercial nature and also because the petitioner wants to invoke prerogative jurisdiction for not paying the due amount towards loan availed by him from bank / financial institution and also because the petitioner had, while availing loan facility, agreed to pay prepayment charges, processing charges, agreed rate of interest etc. and also because the matter involves disputed questions of facts and civil remedy is available to the petitioner where the issues raised by the petitioner including disputed issues related to calculation and quantification etc. can be examined.
Thus, when the remedy is already available to the petitioner, the Court is not inclined to exercise discretionary jurisdiction.
For the aforesaid reasons, the petition fails and the same is accordingly disposed of.
(K.M.THAKER, J.) Suresh* 6